Promotional Benefit Or Rights Grab?

The true extent of the fallout from Instagram's faux pas may never be known. Some sources suggest that in the month preceding Instagram's new terms going into effect, its user base declined by as much as 40% or more from the more than 15.6 million daily active users on December 15.

"Brevity is the soul of wit"

While the legal battle over Instagram's terms proceeded in San Francisco, a court in New York released a decision interpreting Twitter's terms in the case involving photojournalist Daniel Morel, Agency France Presse (AFP), Getty Images and The Washington Post. Although perhaps not a model of clarity, the decision analyzes whether Morel's posting of images to Twitter authorized AFP to download and license the images.

The facts of the case are relatively straightforward. Morel was in Haiti in January 2010, when a devastating earthquake struck. He captured images of the aftermath and transmitted some of those images to Twitter through a TwitPic account. Shortly after Morel uploaded, the images were reposted to the Twitter account of Lisandro Suero, who indicated that he had exclusive photographs of the earthquakes. AFP's Director of Photography for North and South America found the images on Suero's Twitter account and sent eight of them to the AFP photo desk. AFP ultimately transmitted the photographs to Getty, who in turn provided the images to the Post (the Post published four of Morel's images). Because of the way the images were originally obtained—from a Twitter account other than Morel's—the images weren't even credited to Morel initially.

A day after the images were originally transmitted, AFP started to question whether attribution to Suero was correct. The inquiry resulted in AFP issuing a "caption correction," identifying Morel as the photographer. The caption correction was transmitted on AFP's wire and also went to Getty.

If the issues with Instagram and Twitter bring one concept into sharp relief, it's the importance of reading and understanding the terms of a social-media service or website before deciding to upload images.

Corbis quickly joined the fray when its corporate counsel emailed Getty advising that Morel was "exclusive to Corbis." While Getty removed images credited to Morel, it didn't remove the images initially transmitted, as those had been credited to Suero. AFP finally issued a "Kill Notice" regarding Morel's photos, and a copy of the notice went to Getty.